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2022 DIGILAW 1366 (RAJ)

Ajay Kumar Son of Shri Dilip Singh v. State of Rajasthan

2022-05-02

PUSHPENDRA SINGH BHATI

body2022
ORDER : 1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned. 2. Counsel for the petitioner submits that since complete format of FIR is of similar irregularities regarding arms license and the allegations form such an act of petitioners, which are in violation of law, therefore, it amounts to similar transactions and the Court may grant indulgence to the extent of consolidation of trial. 3. Counsel for the petitioner submits that it shall be in the interest of justice and in given circumstance the consolidation shall save petitioners from multiplicity of litigation and extraordinary consumption of time during the litigation. 4. Learned counsel for the revisionist-petitioner further submits that all the connected cases belong to the District Ganganagar, and that the offences therein are also of a similar nature, and a direction to hear the cases together in the learned Court below would be in the interest of justice, as it would be to the convenience of the concerned authorities and the Court to hear the matters together. 5. Learned Public Prosecutor does not oppose the consolidation. 6. This Court is conscious of the judgment rendered by the Hon’ble Apex Court in Amit Kapoor Vs. Ramesh Chander and Ors. (2012) 9 SCC 460 wherein the Hon’ble Apex Court, with regard to the exercise of a High Court’s inherent powers under Section 482 Cr.P.C, observed asunder: “The jurisdiction of the Court under Section 397 can be exercised so as to examine the correctness, legality or proprietary of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression 'prevent abuse of process of any court or otherwise to secure the ends of justice', the jurisdiction under Section 397 is a very limited one. The legality, proprietary or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex liquid alicuiconcedit, conceder videtur id quo res ipsa esse non protest, i.e., when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The Section confers very wide power on the Court to do justice and to ensure that the process of the Court is not permitted to be abused. It may be somewhat necessary to have a comparative examination of the powers exercisable by the Court under these two provisions. There may be some overlapping between these two powers because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power under Section 482 of the Code being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of the Code. To put it simply, normally the court may not invoke its power under Section 482 of the Code where a party could have availed of the remedy available under Section 397 of the Code itself. The inherent powers under Section 482 of the Code are of a wide magnitude and are not as limited as the power under Section 397. Section 482 can be invoked where the order in question is neither an interlocutory order within the meaning of Section 397(2) nor a final order in the strict sense. Reference in this regard can be made to Raj Kapoor and Ors. v. State of Punjab and Ors. MANU/SC/0210/1979 : AIR 1980 SC 258 : (1980) 1 SCC 43 ]}. In this very case, this Court has observed that inherent power under Section 482 may not be exercised if the bar under Sections 397(2) and 397(3) applies, except in extraordinary situations, to prevent abuse of the process of the Court. This itself shows the fine distinction between the powers exercisable by the Court under these two provisions. In this very case, the Court also considered as to whether the inherent powers of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. This itself shows the fine distinction between the powers exercisable by the Court under these two provisions. In this very case, the Court also considered as to whether the inherent powers of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. Rejecting the argument, the Court said that the opening words of Section 482 contradict this contention because nothing in the Code, not even Section 397, can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. There is no total ban on the exercise of inherent powers where abuse of the process of the Court or any other extraordinary situation invites the court's jurisdiction. The limitation is self-restraint, nothing more. The distinction between a final and interlocutory order is well known in law. The orders which will be free from the bar of Section 397(2) would be the orders which are not purely interlocutory but, at the same time, are less than a final disposal. They should be the orders which do determine some right and still are not finally rendering the Court functus officio of the lis. The provisions of Section 482 are pervasive. It should not subvert legal interdicts written into the same Code but, however, inherent powers of the Court unquestionably have to be read and construed as free of restriction.” 7. The Criminal Procedure Code does not specifically speak of consolidation of trials but the same can be done under the inherent powers of the Court flowing from Section 482 of the Code. Unless specifically prohibited, the Criminal Court has inherent powers to make such orders as may be necessary to secure the ends of justice or to prevent the abuse of the process of the Court. 8. This Court also takes note of the judgment rendered by the Hon’ble Court in the case of Nasib Singh Vs. The State of Punjab and Ors. (2022) 2 SCC 89 wherein the following observations were made:- “Section 239(d) of the old Code which corresponds to Section 223(d) of the Code of Criminal Procedure 1973 was interpreted by a three-Judge Bench of this Court in State of Andhra Pradesh v. Cheemalapati Ganeswara Rao MANU/SC/ 0070/1963 : AIR 1963 SC 1850 by juxtaposing the provision with Section 225(1) of the old Code, which is Section 219(1) of Code of Criminal Procedure 1973. In that case, two Respondents along with two others were tried together for offences under the Penal Code. The High Court set aside the convictions on the ground that inter alia the joint trial of two or more offences committed by each of them is illegal. Justice Mudholkar speaking for the Bench observed that the phrase "offence committed in the course of the same transaction" would mean offences that are committed in the proximity of time or place, or unity of purpose and design : ...Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a, strong circumstance to indicate that those acts form part of the same transaction... The judgment therefore lays down three significant principles on joint trials: (i) A separate trial is not contrary to law even if a joint trial for the offences along with other offences is permissible; (ii) The possibility of a joint trial has to be decided at the beginning of the trial and not on the basis of the result of the trial; and (iii) The true test is whether any prejudice has been sustained as a result of a separate trial. In other words, a retrial with a direction of a joint trial would be ordered only if there is a failure of justice. In Essar Teleholdings Limited v. Central Bureau of Investigation MANU/SC/1084/2015 : (2015) 10 SCC 562 , Justice R.F. Nariman, speaking for a three-Judge Bench reiterated the principles which have been enunciated in Chandra Bhal (supra). In other words, a retrial with a direction of a joint trial would be ordered only if there is a failure of justice. In Essar Teleholdings Limited v. Central Bureau of Investigation MANU/SC/1084/2015 : (2015) 10 SCC 562 , Justice R.F. Nariman, speaking for a three-Judge Bench reiterated the principles which have been enunciated in Chandra Bhal (supra). Further, it was held that even if the conditions stipulated in Section 223 Code of Criminal Procedure to conduct a joint trial have been fulfilled, it may not be desirous. From the decisions of this Court on joint trial and separate trials, the following principles can be formulated: (i) Section 218 provides that separate trials shall be conducted for distinct offences alleged to be committed by a person. Sections 219-221 provide exceptions to this general rule. If a person falls under these exceptions, then a joint trial for the offences which a person is charged with may be conducted. Similarly, Under Section 223, a joint trial may be held for persons charged with different offences if any of the clauses in the provision are separately or on a combination satisfied; (ii) While applying the principles enunciated in Sections 218-223 on conducting joint and separate trials, the trial court should apply a two-pronged test, namely, (i) whether conducting a joint/separate trial will prejudice the defence of the Accused; and/or (ii) whether conducting a joint/separate trial would cause judicial delay. (iii) The possibility of conducting a joint trial will have to be determined at the beginning of the trial and not after the trial based on the result of the trial. The Appellate Court may determine the validity of the argument that there ought to have been a separate/joint trial only based on whether the trial had prejudiced the right of Accused or the prosecutrix; (iv) Since the provisions which engraft an exception use the phrase 'may' with reference to conducting a joint trial, a separate trial is usually not contrary to law even if a joint trial could be conducted, unless proven to cause a miscarriage of justice; and (v) A conviction or acquittal of the Accused cannot be set aside on the mere ground that there was a possibility of a joint or a separate trial. To set aside the order of conviction or acquittal, it must be proved that the rights of the parties were prejudiced because of the joint or separate trial, as the case may be.” 9. This Court finds, as rightly pointed out by learned counsel for the revisionist-petitioner, that the matters listed together before this Court, with regard to the issue pertaining to the arms licensing, are of similar nature and design; furthermore, all the cases fall within the jurisdiction of the courts at Ganganagar District. The tagging of all the matters for their analogous hearing, would therefore cater to the general convenience of all the parties and the concerned authorities, and the learned Court below. Furthermore, this Court also finds that if the same is done, it would cause no prejudice to either of the parties herein, as per the principle of law laid down in Nasib Singh (supra). This Court, therefore, in the interest of justice, and in light of the observations made herein above, directs the learned Court below to consolidate the trials of the present matters for analogous hearing, to meet the ends of justice; apart therefrom, it would also save the concerned parties from multiplicity of proceedings, delay and expenses; this would also make the exercise of adducing evidence in the trials, convenient for all the concerned parties, and also enable the Court to have a better overview of the issues involved therein. The necessary orders shall accordingly be passed by the learned court below, strictly accordance with law. 10. However, it is made clear that the aforesaid order for joinder of trials shall not operate where the accused concerned is facing trial under the provisions of the Prevention of Corruption Act, 1988. 11. With the aforesaid observations and directions, the present petitions stand disposed of. All pending applications also stand disposed of.